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Asamakan, Regina v [1964] PGSC 1; [1964] PNGLR 193 (23 July 1962)

Papua New Guinea Law Reports - 1964

[1964] PNGLR 193 - Regina v Brigitta Asamakan

[1964] PNGLR 193

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

BRIGITTA ASAMAKAN

Madang

Mann CJ

19-20 July 1962

23 July 1962

CRIMINAL LAW - Wilful murder - Infanticide - Alternative verdict - onus of proof where infanticide raised as a defence to charge of wilful murder - Criminal Code ss. 26, 27 and 647 - Infanticide Ordinance s. 3.

The accused was charged with the wilful murder of her week old illegitimate son. Evidence as to her state of mind was inconclusive but she apparently sought to win her husband�s forgiveness by removing the evidence of an adulterous relationship into which she had entered during her husband�s lengthy absence from the village. The defence of infanticide was raised:

Held:

N1>(1)����� The onus of proof is on the Crown to satisfy the Court, beyond reasonable doubt, that the elements of the crime of infanticide are either absent, or, at least, not wholly present, and that each ingredient of wilful murder is present and not negatived by any other defence which may be raised by the evidence in the particular case.

N1>(2)����� That, on the evidence, the accused was guilty of infanticide and not guilty of wilful murder.

Orbiter, sections 26 and 27 of the Criminal Code must be read together and, if applied to the present case, would exclude the provisions of the Infanticide Ordinance.

Cases Cited:

Stapleton v. Regina [1952] HCA 56; (1952) 86 C.L.R. 358

Armanasco v. Regina [1951] WALawRp 7; (1951) 52 W.A.L.R. 78.

Counsel:

Bowen, Crown Prosecutor.

Germain, Counsel for the defence.

Trial before the Supreme Court, Madang.

MANN CJ:� The facts put in issue by the defence case were of considerable difficulty of proof, in the circumstances, and the evidence called in support scarcely hinted at the possibility that these facts were true. Further, the process of translation through Pidgin made it very difficult to form any reliable impression on several vital matters, emphasising the grave difficulties of Pidgin as a vehicle of communication between Europeans and uneducated native people with different thinking habits.

Early in the hearing it appeared to me that there were two very important questions; the first was the social context in which certain statements attributed to the accused should be considered, and second, the legal point as to the onus of proof as to infanticide.

The accused is charged with wilful murder of her infant son aged about one week. On the direct admission of the accused and on her mother�s evidence, so far as it could be understood, there was a plain prima facie case of wilful murder.

The defence was that the accused had committed infanticide within the meaning of the Infanticide Ordinance. She gave evidence on her own behalf and admitted killing the child. She and her mother both denied any abnormality in relation to the events of the birth. The accused gave evidence about her thoughts at the time, but whether she was to be taken as merely thinking normally or as worried, upset, anxious, or oppressed by guilt, shame, or any other emotion, all depend on the meaning and import of the ambiguous Pidgin word �tingting� in an uncertain context. In two instances the context enable the word to be interpreted as �worried�.

The explanation given by the accused was that her husband was away from home for some considerable period, and that she had become pregnant to another man during her husband�s absence. Her husband returned home just before the child was born, but did not visit his wife then or subsequently. She said that she fed the child properly and looked after it well for a week, but thought that her husband might take another woman as his wife and so she killed the child, in the early morning, at about dawn.

The people in question are primitive and remote. Among such peoples fear of sorcery and contamination between the sexes is common, especially in relation to such events as childbirth. Nevertheless, Mission influence towards family domestic living appears to be strong, and the accused herself took the oath and was able to speak and understand Pidgin, and presented the appearance of a healthy, intelligent young woman of relatively civilized dress and manners.

In response to my request for information as to social customs and background some very incomplete information emerged.

There is a strict practice of seclusion of women during birth. This birth took place in some kind of a house. It appears not to have been a dwelling-house, and was variously described as a back-house, cookhouse, a house belonging to all the women and strictly for women alone, and a house belonging to the accused, but not a menstrual house for her use. It seems likely, but far from certain, that it was some traditional kind of house, built for the accused for use in childbirth.

The accused had her mother with her at the time when she killed the child, a week after the birth took place. It is not clear whether this was the house in which the child was born or whether the mother of the accused was present at or assisted in the birth. She said she was �present� at the time but this statement is in conflict with other evidence and much of her evidence was uncertain: again it is possible but by no means certain that the birth having taken place in a small enclosure of traditional pattern, the accused and her baby later went to a dwelling-house and were there looked after by the mother of the accused.

The accused saw her husband from a distance after his return to the village, and appears to have known that he had gone to live with his brother. She received no message from him and did not know his intentions for the future. This apparently caused her little concern until some time after the baby was born. This is some indication that her mental processes underwent some change as a result of the birth.

The husband�s actions would depend almost entirely upon social habits and customs. He must be taken to have heard of the pregnancy and the birth of the child. The mother of the accused had disapproved strongly, but had since accepted the situation, and she very strongly disapproved when the child was killed.

It is likely that the child would not have been allowed to suffer, although the evidence gives no idea of his status. Either he would be looked after at some appropriate stage of development by the traditionally appropriate relations; or the husband, if by local custom he had any claim to the child, might become a willing foster father, or adopt it as his own. I have no information on these matters, and so do not know whether a week�s absence on his part was significant to the accused.

The more significant aspects of the situation are likely to have been the �shame� attaching to the accused and her husband by reason of her adultery, and the customary restrictions on sexual intercourse frequently encountered, but in varying form and degree, amongst Melanesian peoples.

As to the question of adultery, it is clear from the mother�s disapproval that adultery is not generally condoned in this society. How severe the sanctions were, or are, I do not know. One sanction imposed, of which there is direct evidence from the accused, is that when a wife bears another man�s child, her husband may leave her, and the child, and take another wife. Whether he does so or not, however, is at the choice of the husband.

The mind of the accused was not directed to her prospects of re-marriage, but solely to her husband�s prospective actions. Some picture of what she might expect her husband to do according to customary usage, and what he might be persuaded to do from individual choice is essential to any real understanding of the pressures operating on the mind of the accused at any relevant point of time.

I think that having offended and put herself in jeopardy, the accused hoped to win her husband back quickly by being available to him as a wife much earlier, or more effectively, by reason of the infant�s death, and before he had taken another wife. Having returned from a term of employment, he would probably be eager for an early decision, and she probably felt that in the meantime he was much more under the influence of his brothers, with whom he was living, than of his wife and her family. Other possible considerations would be that he might overlook the �shame� aspect more readily if the child were not there and that she might be more valuable to him without the duty of looking after and rearing the child.

The social background of thinking habits becomes very important here. It seems clear that there is a very strict prohibition against a husband being present during birth. A father may come and see the child and see that it is strong and healthy, but whether this is shortly ater the birth or only after one month, is not clear. During the first week at least the husband of the accused did not purport to exercise any right which might be taken as a gesture favourable to the accused.

By custom the husband must avoid his wife altogether during the first month, but apparently he can talk to her during the second month. He must strictly avoid intercourse with her for the first month, or perhaps two months, and may live with her after the second. What he may do during the second is not clear, nor is the effect, if any, under such customs of the death of a child.

The evidence does not establish whether there is a further period of abstinence imposed whilst the mother of a child is breast-feeding it. This is a very common form of abstinence, ranging in different localities from a short period, to abstinence until the stage when the child is able to walk or ceases to be breast fed. The latter period greatly varies according to local conditions and experience.

It is clear that on some points very strict rules are still observed as to avoidance and abstinence; and that the husband�s actions would be largely conditioned by his observance of these. It is not entirety clear what restrictions arise from the fact of birth, or for what period they apply, or what further restrictions, if any, arise from lactation, or for what period they apply, or to what degree Mission or other influences might have mitigated their severity so as to give the accused some prospect of overcoming them. It seems clear that sanctions arising from adultery are available at the husband�s option.

If this is a case of wilful murder for the advantage of the accused it is difficult to say, without much clearer evidence, in what way the accused expected to improve her position with her husband by killing the child after nursing it for a week. If there could be no advantage, or if the advantage were slight or remote, the circumstances might suggest abnormality in her actions due to brooding or depression which should have been apparent to her mother. The evidence does not support this, for her mother, a few feet away, was taken entirely by surprise.

In one statement the accused said that she feared her husband would leave her because she was �burdened� with a child, but this may be a chance expression due to difficulty in interpretation, and forms an insecure foundation for too much interference. If it could be taken literally and as a significant indication of a balanced and calculating mind, it would tend to support the charge of wilful murder, assuming that relief from her burden of caring for the child would secure the accused a substantial advantage by enhancing her value to her husband.

Again, the accused showed by her conduct that she had a consciousness of having committed a crime and an expectation of punishment, but, of course, did not specify which crime.

I cannot accept the view that it is unlikely that birth or lactation would disturb the mind of a person a week later, since the Ordinance expressly covers cases arising over a period of twelve months.

The accused certainly does not appear to be lacking in emotional attributes, but there is no medical evidence before me to guide me in arriving at an assessment of her probable emotional stability in relation to the circumstances that existed at the time when she killed her child.

I think that in the result the case falls to be determined upon the onus of proof. Wilful murder is established up to a certain point in the evidence, but if the onus of disproving the elements of the offence of infanticide rests with the Crown, I would not be prepared on the evidence before me to negative the facts constituting that offence. If the onus is on the defence, in any degree, I would not be prepared to say affirmatively that infanticide was proved.

The defence is inadequately supported by evidence, but in my opinion it is supported by sufficient evidence to put the facts, and the inferences of fact to be drawn, in issue.

I now deal with the question of law. It was suggested that the onus is on the defence because section 26 of the Code raises a presumption of sanity and places on the defence the burden of proving, (on the balance of probability), that the person was at the relevant time not of sound mind.

In my opinion section 26 has nothing to do with the present case. It must be read with section 27 which gives some assistance in determining the nature and quality of unsoundness of mind for the purposes of the defence of insanity. If these sections applied in the present case, the accused would not, apart from the Infanticide Ordinance, be guilty of wilful murder, so that the provisions of the Infanticide Ordinance would be expressly excluded, and the accused could not be punished for manslaughter, but would be dealt with under section 647 of the Criminal Code.

The High Court has warned of the danger of relying on general presumptions or maxims as a means of altering the onus of proof, which is clearly on the Crown unless expressly negatived, as it is in section 26 for the purposes of that section. (See quotation from Stapleton v. Regina[clxiii]¹�1 in Carters Criminal Code noted to section 23).

It is a question of proof, and unless the evidence excluded infanticide, I am bound to reach the opinion specified in section 3. If the offence of infanticide alone were alleged, the onus on all points would clearly be on the Crown, and it would be an anomaly if the onus were reversed merely by alleging wilful murder with infanticide as an alternative verdict. (Section 15E. and E.D. footnote 6019, 6020).

The Infanticide Ordinance is expressly to apply to cases where the �balance of mind� is �disturbed�. These words are not appropriate to describe the kind of insanity which relieves a person from criminal responsibility for his actions. A whole range of emotional disturbances, such as jealously, anger, revenge or lack of self-control, are excluded from section 27, (See Armanasco v. Regina[clxiv]²,) and these are typical of matters affecting mental stability or balance, as distinct from insanity.

I think that infanticide applies to cases where persons, not insane at the time, are so emotionally disturbed that the normal state of mental balance or stability is not fully present to help them resist influences which a person is normally expected by law to resist. It is also relevant, of course, to consider whether the lack of balance (but seemingly not the killing), was due to the effect of childbirth or lactation.

This provision cuts across the general principles of criminal responsibility, and was intended to do so. It is purely statutory in origin, and was introduced to overcome a practical situation in which public opinion regarded this as an unnatural offence and was so adverse to inflicting capital punishment on mothers who destroyed their own infants in these circumstances, that many escaped conviction or sentence in varying degree. Thus, in a roundabout way, the legislation is designed to give more effective and realistic legal protection to recently born infants, and, at the same time, to admit a reduced degree of criminal responsibility in the cases specified.

This legislation has a precise parallel in the statutory effect given to provocation under the Criminal Code.

In these circumstances, it seems plain to me that the onus is on the Crown to satisfy the Court, beyond reasonable doubt, that the elements of the crime of infanticide are either absent, or, at least, not wholly present, and that each ingredient of wilful murder is present, and not negatived by any other defence (such as section 23), which may be raised by the evidence in the particular case.

There is some evidence to support the Crown�s case against infanticide. Both the accused and her mother described the birth as normal, and, as far as I can understand their meaning, free from noticeable complications. The accused did not appear to be ill, but she remained in the house all the time for various reasons, including weakness in the legs and the strict taboos placed on her. On this evidence I cannot fairly assess the emotional state at the relevant time: how deeply she was affected by her predicament; or whether her mental balance was affected by childbirth or lactation.

For these reasons I return a verdict of Not Guilty of wilful murder, but Guilty of infanticide.

Unless further information is now available I propose to remand the accused for sentence, and I intimate that before imposing sentence I would like to have proper information on the social background of customary behaviour and on the problems which might have arisen from these, as well as some appropriate medical evidence showing how these problems might have presented themselves to the mind of the accused on the assumption that it was affected by childbirth or lactation. The husband�s decision might also prove to be material on the question of sentence. In the absence of this information I will be in the unsatisfactory position of having to impose sentence having regard to elements of the offence, the effective force of which is unknown, owing to the incidence of the verdict by reason of the onus of proof.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

Solicitor for the Accused: W. A. Lalor, Public Solicitor.

[clxiii](1952) 86 C.L.R. 358.

[clxiv][1951] WALawRp 7; (1951) 52 W.A.L.R. 78.